Citation Nr: 0914188
Decision Date: 04/16/09 Archive Date: 04/24/09
DOCKET NO. 06-01 460 ) DATE
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On appeal from the Department of Veterans Affairs (VA)
Regional Office (RO) in Montgomery, Alabama
THE ISSUE
Whether a grant of apportionment of $200 a month to the
Veteran's former wife on behalf of his child was proper.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Heather J. Harter, Counsel
INTRODUCTION
The Veteran served on active duty from December 1962 to June
1964.
This matter arises from a January 2004 RO decision granting
an apportionment of $200 a month to the Veteran's former
wife, on behalf of their son. The apportionment was
implemented effective in August 2003 and terminated in
September 2005, when the Veteran's son attained the age of
eighteen years. The Veteran filed a timely disagreement with
the apportionment decision and the instant appeal ensued.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action on his part is required.
REMAND
A claim contesting the grant of an apportionment is a
"contested claim" due to the possibility that VA may be
required to attempt to collect the already-paid apportioned
compensation from the Veteran's former wife, if the Veteran
prevails upon his claim. A simultaneously contested claim
refers to the situation in which the allowance of one claim
results in the disallowance of another claim involving the
same benefit or the allowance of one claim results in the
payment of a lesser benefit to another claimant. 38 C.F.R. §
20.3(p) (2008). Governing law and regulation provides that
all interested parties will be specifically notified of the
action taken by the agency of original jurisdiction in a
simultaneously contested claim and of the right and time
limit for initiating an appeal, as well as hearing and
representation rights. 38 U.S.C.A. § 7105(a) (West 2002); 38
C.F.R. § 19.100 (2008).
Under 38 C.F.R. § 19.101 (2008), upon the filing of a NOD in
a simultaneously contested claim, all interested parties will
be furnished with a copy of the statement of the case (SOC).
Under 38 C.F.R. § 19.102 (2008), when a Substantive Appeal is
filed in a simultaneously contested claim, the content of the
Substantive Appeal will be furnished to the other contesting
parties to the extent that it contains information which
could directly affect the payment or potential payment of the
benefit which is the subject of the contested claim. If a
hearing is scheduled for any party to a simultaneously
contested claim, the other contesting claimants and their
representatives, if any, will be notified and afforded an
opportunity to be present. The appellant will be allowed to
present opening testimony and argument. Thereafter, any other
contesting party who wishes to do so may present testimony
and argument. The appellant will then be allowed an
opportunity to present testimony and argument in rebuttal.
Cross-examination will not be allowed. 38 C.F.R. § 20.713
(2008).
Review of the record reflects that the contested claims
procedures have not been met. A SOC was issued in December
2005. A copy was provided to both the Veteran and his former
wife. In the cover letter to the Veteran's former wife, she
was advised that the copy was being sent to her for
informational purposes only, and did not require any action
on her part, but that if the Veteran filed a Substantive
Appeal, she would be notified. Subsequently, in December
2005, the Veteran filed a timely substantive appeal, in which
he requested a hearing before a Veterans Law Judge to be held
in Washington DC. Significantly, however, a copy of that (or
a summary of the content) was not provided to the Veteran's
former wife and she was not notified of or given the
opportunity to attend the scheduled hearing, which the
Veteran failed to attend. Normally, when a Veteran is
notified of the scheduled time and place but nevertheless
fails to appear for the hearing, the request for a hearing
will be considered to have been withdrawn. 38 C.F.R.
§ 20.704(d). However, because the VA failed to notify the
Veteran's former wife, the Board finds that if the Veteran
continues to desire a hearing, another opportunity for a
hearing must be provided in order to cure this due process
deficiency.
The Board of Veterans' Appeals (Board) concludes that the
case must be remanded to ensure that the contested claims
procedures have been followed. Accordingly, to ensure full
compliance with due process requirements set forth in the
regulations cited above, the case is REMANDED to the RO, via
the AMC, for the following development:
1. The AMC should review the claims file
and ensure that all contested claims
procedures have been followed. The AMC
should furnish the Veteran's former wife
with a copy of the Veteran's December 2005
Substantive Appeal or the content of the
Substantive Appeal.
2. If any response containing new
evidence and/or argument is received from
the Veteran's former wife, or if new
evidence and/or argument is received from
the Veteran, the AMC should again review
the record. If the benefit sought on
appeal remains denied, the Veteran and his
representative, along with his former wife
and her representative, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
3. The AMC should then request
clarification from the Veteran as to
whether he still wishes to present
testimony during a hearing before a
Veterans Law Judge, in light of his
failure to appear for the previously-
scheduled hearing. If he responds in the
affirmative, then the claims file should
be forwarded to the Board so that such a
hearing may be scheduled and proper notice
provided to both parties.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
(CONTINUED ON NEXT PAGE)
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2008).
_________________________________________________
L. M. Barnard
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).